NEW YORK – A newly disclosed secret memo authored by the Department of Justice’s Office of Legal Counsel (OLC) in March 2003 that asserts President Bush has unlimited power to order brutal interrogations of detainees also reveals a radical interpretation of the Constitution’s Fourth Amendment protection from unreasonable search and seizure. The memo, declassified yesterday as the result of an American Civil Liberties Union lawsuit, cites a still-secret DOJ memo from 2001 that found that the “Fourth Amendment had no application to domestic military operations.”

The October 2001 memo was almost certainly meant to provide a legal basis for the National Security Agency’s warrantless wiretapping program, which President Bush launched the same month the memo was issued. As a component of the Department of Defense, the NSA is a military agency.

“The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power,” said Jameel Jaffer, Director of the ACLU’s National Security Project. “The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties, and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law.”

The Bush administration has never argued publicly that the Fourth Amendment does not apply to military operations within the nation’s borders. The memo released yesterday publicizes this argument for the first time.

The ACLU has been aware of the Justice Department’s October 2001 memo since last year, but until now, its contents were unknown. The Justice Department informed the ACLU of the memo’s existence as a result of a FOIA lawsuit seeking information concerning the NSA’s warrantless wiretapping program. The Justice Department acknowledged the existence of “a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.” Until now, however, almost nothing was known about the memo’s contents – except that it was related to a request for information about the NSA’s warrantless wiretapping program. The ACLU has challenged the withholding of the October 2001 memo and the issue is pending before the U.S. District Court for the District of Columbia.

The memo released to the ACLU yesterday cites the October 2001 memo but takes its argument even further. Relying on the earlier memo, the March 2003 memo argues that the president has authority as Commander-in-Chief to bypass not only the Fourth Amendment but the central due process guarantee of the Fifth Amendment as well.

“This memo makes a mockery of the Constitution and the rule of law,” said Amrit Singh, a staff attorney with the ACLU. “That it was issued by the Justice Department, whose job it is to uphold the law, makes it even more unconscionable.”

The March 2003 memo was declassified in response to a lawsuit filed by the ACLU, the New York Civil Liberties Union, and other organizations in June 2004 to enforce Freedom of Information Act (FOIA) requests for records concerning the treatment of prisoners in U.S. custody abroad. The ACLU has been fighting for the release of the March 2003 Yoo memo since filing the lawsuit. A few weeks ago, after the court ordered additional briefing on whether the Defense Department could continue to withhold the memo, the government reluctantly agreed to conduct a declassification review by March 31. The Defense Department released this memo after conducting the review.

The 2003 Department of Justice memo can be found online at:
www.aclu.org/safefree/torture/34745res20030314.html

Documents relating to the ACLU’s NSA FOIA lawsuit are available online at:
www.aclu.org/safefree/nsaspying/30022res20060207.html

To date, more than 100,000 pages of government documents have been released in response to the ACLU’s FOIA lawsuit related the abuse of prisoner in U.S. custody abroad. These documents are available online at: www.aclu.org/torturefoia